Legal moves to increase police powers in the name of fighting terrorism are hardly new territory for Europe. The UK’s 2016 Investigatory Powers Act is one recent example; Emmanuel Macron’s 2017 antiterrorism law, which ended France’s state of emergency by writing many of its provisions permanently into law, is another. But when Germany starts granting its police sweeping new powers of surveillance, arrest and detention, the symbolic and constitutional implications are extremely concerning.
Region by region
That is precisely what is currently happening, although Germany’s federal structure disguises the fact. Of the sixteen states that make up the Federal Republic of Germany, only one (Thüringen) has not announced any plans to tighten its police laws. In May, 30,000 people took to the streets of Munich to protest a new law giving the Bavarian police unprecedented powers of surveillance, undercover policing and – most eyecatchingly – the right to carry hand-grenades. To no avail: the law was passed by the CSU majority in the Bavarian parliament: the same majority that in recent weeks threatened to unilaterally instruct the police to defy federal government policy and turn away refugees at the Austrian border.
This Saturday, an estimated 20,000 demonstrators marched in Düsseldorf to protest a similar piece of police legislation in North Rhine-Westphalia (NRW), Germany’s most populous federal state.
The Düsseldorf protest was notable for its diversity: unions, civil liberty groups and antifascists marched alongside football fans, lawyers and environmentalists.
Placards from all corners of the spectrum displayed inscriptions referring to the lessons of Germany’s past – many of them referencing 1933, the year that the Gestapo (Secret State Police) was formed under the Nazis.
“We in Germany know full well what happens when a state takes complete control,” explains Nils Jansen, the mobilisation’s youthful spokesperson: “that’s why we’re saying now that it must never happen again.”
As in Bavaria, the crux of the new law hinges around the term ‘impending danger’. This legalistic formulation enables the police to act against an individual without having to produce concrete grounds for suspicion, meaning, Jansen argues, that “everyone” could potentially be a target: “strike organisers, demonstrators, whistleblowers, football fans, someone who clicks on the wrong website or happens to be in the wrong place at the wrong time – they could all end up in the police’s sights”. At the Düsseldorf demonstration it’s a message that seems to have resonated with everyone from the digital activists wanting the police to “stay out of our smartphones” to the football fans singing about just “wanting to get to the stadium in peace”.
Alongside the problematic concept of “impending danger”, the NRW police law introduces a whole suite of restrictive policing measures such as the use of tasers as service weapons, dragnet controls such as stop and search, increased video surveillance of public spaces, telephone hacking and digital data collection, temporary injunctions limiting a suspect’s right to freedom of assembly and freedom of association, electronic tagging and preventative custody of up to a month on suspicion of terrorism or seven days for the purposes of identification.
Christian Mertens is a Cologne-based lawyer whose clients include environmental activists engaged in an ongoing struggle to protect the Hambach Forest, an area of ancient woodland caught in the path of energy giant RWE’s mammoth open-cast mining operation. “It is clear,” he says, “that there has been a conscious political decision to roll out this legislation region by region.”
Mertens sees environmental activists as being specifically targeted by the new law, claiming that the provision for seven day preventive custody for identification purposes is a direct response to tactics employed during recent anti-coal actions: “it’s not about ascertaining identity: they know who these people are! They do it as a punishment, or as a way of educating them. It’s like a kick in the backside to show them that they’re doing things the wrong way, and ninety nine per cent of the time it’s directed against environmental activists.” It is, Mertens speculates, likely to be “no accident” that the Kerpen police force, tasked with policing protest actions in and around the Hambach Forest, will be amongst the first to participate in a taser trial.
Mertens’ concerns are constitutional as well as practical. The German Constitution was signed into being in 1949, a document designed to set out the values and mechanisms of a Germany in which the horrors of the Nazi era could never be repeated. One of the values or ‘basic rights’ is privacy of correspondence and telecommunications: a fact which is likely to prove key should the law be taken before the federal constitutional court.
One of the mechanisms is the so-called “Trennungsgebot” or “separation order” which establishes a clear division between the executive powers of the police, and the surveillance powers of the federal intelligence agency. The hollowing out of this constitutional firewall represents a weakening of a legal structure born directly out of the German experience of state fascism.
“The free citizen”, says Mertens, “should be allowed to do anything, as long as it’s not explicitly forbidden. The police should be allowed to do nothing, so long as it’s not explicitly allowed.”
Imprisoning the innocent
NRW’s hardline Minister of the Interior, Herbert Reul, sees things differently: “where there’s an impending danger of terrorism, it’s constitutionally possible to give the police increased scope of action,” he told the Rheinische Post, “now we’re saying: with other crimes too, we need to be able to act before they can take place.” It’s a claim he has repeated on camera, saying that it is “better to lock up one innocent person, than risk the lives of many more.”
Lawyer Christian Mertens has a clear counter to that argument: “in the legal profession we have the saying: ‘better to let one hundred people go free, than imprison one single innocent’”. Verena Schäffer, spokesperson for the regional Green Party faction, puts it even more sharply: “Interior Minister Reul is himself a risk to freedom and to our constitutionally chartered rights.”
NRW, however, is not Bavaria. Interior Minister Reul does not enjoy the support of a one party majority in the regional parliament. Instead, the CDU is part of a slim-majority coalition with the (economically) liberal FDP, who, under the growing wave of public pressure, have already voiced significant enough concerns to result in the CDU abandoning its previous plans to push the law through before the summer recess.
There is, in other words, still all to play for and the consequences of Saturday’s showdown in Düsseldorf will reach far beyond the state of NRW. “The resistance”, says Nils Jansen of the No Police Law Alliance, “doesn’t stop here – it’s only just beginning”.
This article was first published in openDemocracy. It has been published here with permission.